D.H. and Department of the Army, Civilian Personnel Advisory Center, Fort Hood, TX (Board decision, November 20, 2012)

ECAB final decision on the merits. The Board affirmed OWCP's February 28, 2012 denial of D.H.'s occupational disease claim. The Board's compensation decision is final under 5 U.S.C. § 8128(b), without ordinary judicial review. A party may petition the Board for reconsideration within 30 days of issuance unless this decision specifies another period, under 20 C.F.R. § 501.7(a).

Plain-English summary

D.H., an Army management assistant, attributed right hand symptoms to prolonged typing and computer use and claimed carpal tunnel syndrome. Her physician reported wrist pain and linked the complaints to repetitive work, but did not firmly diagnose a medical condition or adequately explain causation of one. The Board found that a key element of an occupational disease claim was missing. It affirmed OWCP's denial.

Decision snapshot

• Authority: FECA proof of a diagnosed occupational disease and work causation.
• Outcome: February 28, 2012 denial affirmed.
• Key point: Symptoms and a general work link did not establish a diagnosed, work-related condition.

Full text (ECAB public release)

United States Department of Labor
Employees’ Compensation Appeals Board

________
)
D.H., Appellant
)
)
and ) Docket No. 12-1063
) Issued: November 20, 2012
DEPARTMENT OF THE ARMY, CIVILIAN
)
PERSONNEL ADVISORY CENTER,
)
Fort Hood, TX, Employer
)
__________ )

Appearances: Case Submitted on the Record
Appellant, pro se
Office of Solicitor, for the Director

DECISION AND ORDER

Before:
COLLEEN DUFFY KIKO, Judge
PATRICIA HOWARD FITZGERALD, Judge
ALEC J. KOROMILAS, Alternate Judge

JURISDICTION

On April 10, 2012 appellant filed a timely appeal from a February 28, 2012 merit decision of the Office of Workers’ Compensation Programs. Pursuant to the Federal Employees’ Compensation Act1 (FECA) and 20 C.F.R. §§ 501.2(c) and 501.3, the Board has jurisdiction over the merits of this case.2

ISSUE

The issue is whether appellant has established that she sustained an injury in the performance of duty.

1
5 U.S.C. § 8101 et seq.
2
The Board notes that appellant submitted additional evidence with her appeal to the Board. However, the Board may only review evidence that was in the record at the time OWCP issued its final decision. See 20 C.F.R.
§§ 501.2(c)(1); M.B., Docket No. 09-176 (issued September 23, 2009); J.T., 59 ECAB 293 (2008); G.G., 58 ECAB 389 (2007); Donald R. Gervasi, 57 ECAB 281 (2005); Rosemary A. Kayes, 54 ECAB 373 (2003).
FACTUAL HISTORY

On November 29, 2011 appellant, then a 55-year-old management assistant, filed an occupational disease claim alleging that her carpal tunnel condition was due to her employment duties. Specifically, she attributed it to using her right hand for scrolling, typing, numbers and the mouse and being on the keyboard for at least seven hours per day.

Appellant noted that she first became aware of the condition on October 3, 2011, but did not realize it was employment related until October 30, 2011.

By letter dated December 6, 2011, OWCP informed appellant regarding the medical and factual evidence to submit to support her claim. It noted that she had not submitted any evidence with her claim and advised her as to the elements required to support an occupational disease claim. Appellant was given 30 days to provide the requested evidence.

In response to OWCP’s letter, appellant submitted medical and factual evidence. The factual evidence consisted of statements from appellant and Diane Papke, her supervisor, and a position description. The medical evidence consisted of reports from Dr. Heath Henbest, a treating osteopath, specializing in family medicine.

In a November 4, 2011 duty status report (Form CA-20), appellant was released to resume work that day with restrictions by Dr. Henbest.

In a November 10, 2011 letter, Dr. Henbest reported seeing appellant on November 4, 2011 for right wrist pain complaints. He opined that appellant’s complaints were due to the repetitive right wrist and hand use required by her employment duty of typing.

By decision dated February 28, 2012, OWCP denied appellant’s claim as the record contained no medical evidence containing a diagnosis.

LEGAL PRECEDENT

An employee seeking benefits under FECA3 has the burden of establishing the essential elements of her claim, including the fact that the individual is an employee of the United States within the meaning of FECA; that the claim was filed within the applicable time limitation; that an injury was sustained while in the performance of duty as alleged and that any disability and/or specific condition for which compensation is claimed are causally related to the employment injury.4 These are the essential elements of each and every compensation claim regardless of whether the claim is predicated on a traumatic injury or an occupational disease.5

OWCP regulations define the term occupational disease or illness as a condition produced by the work environment over a period longer than a single workday or shift.6 To 3 5 U.S.C. § 8101 et seq.
4
C.S., Docket No. 08-1585 (issued March 3, 2009); Bonnie A. Contreras, 57 ECAB 364 (2006).
5
S.P., 59 ECAB 184 (2007); Joe D. Cameron, 41 ECAB 153 (1989).
6
20 C.F.R. § 10.5(ee). See S.M., Docket No. 09-2290 (issued July 12, 2010); Donald W. Wenzel, 56 ECAB 390 (2005).

2 establish that an injury was sustained in the performance of duty in an occupational disease claim, a claimant must submit: (1) medical evidence establishing the presence or existence of the disease or condition for which compensation is claimed; (2) a factual statement identifying employment factors alleged to have caused or contributed to the presence or occurrence of the disease or condition; and (3) medical evidence establishing that the diagnosed condition is causally related to the employment factors identified by the claimant.7

If a claimant does establish an employment factor, he or she must submit medical evidence showing that a medical condition was caused by such a factor.8 The medical evidence required to establish causal relationship is generally rationalized medical opinion evidence from a physician. The opinion of the physician must be based on a complete factual and medical background of the employee, must be one of reasonable medical certainty and must be supported by medical rationale explaining the nature of the relationship between the diagnosed condition and the specific employment factors identified by the employee.9

ANALYSIS

OWCP accepted that the occupational exposure occurred as alleged from keyboard use and using her right hand for scrolling, typing, numbers and the mouse. It found that the evidence of record was devoid of any medical evidence diagnosing a condition. The issue is whether appellant has established that she sustained a carpal tunnel condition causally related to the accepted employment factors. The Board finds that appellant has failed to meet her burden of proof.

The medical evidence submitted by appellant fails to provide a physician’s opinion with a firm diagnosis or an opinion explaining how her carpal tunnel condition was caused or aggravated by the accepted employment factors. In the November 4, 2011 duty status report, Dr. Henbest noted work restrictions but provided no diagnosis. Similarly, in his November 10, 2011 report, Dr. Henbest provided no diagnosis or mentioned any medical condition. As the medical evidence of record does not contain any firm diagnosis, rationale or explanation of the mechanism of injury arising from her accepted employment duties, appellant failed to meet her burden.10

An award of compensation may not be based on surmise, conjecture or speculation.11 Neither the fact that appellant’s claimed condition became apparent during a period of employment nor her belief that her condition was aggravated by her employment is sufficient to establish causal relationship.12 The fact that a condition manifests itself or worsens during a 7 D.U., Docket No. 10-144 (issued July 27, 2010); Roy L. Humphrey, 57 ECAB 238 (2005); Frankie A. Farinacci, 56 ECAB 723 (2005).
8
C.D., Docket No. 09-1881 (issued April 20, 2010); Effie Morris, 44 ECAB 470 (1993).
9
D.S., Docket No. 09-860 (issued November 2, 2009); I.J., 59 ECAB 408 (2008); B.B., 59 ECAB 234 (2007);
Solomon Polen, 51 ECAB 341 (2000); Victor J. Woodhams, 41 ECAB 345 (1989). 10 Gary M. DeLeo, 56 ECAB 656 (2005); Victor J. Woodhams, supra note 9.
11
E.J., Docket No. 09-1481 (issued February 19, 2010); D.D., 57 ECAB 734 (2006); Paul E. Thams, 56 ECAB 503 (2005).
12
W.D., Docket No. 09-658 (issued October 22, 2009); Sandra D. Pruitt, 57 ECAB 126 (2005).

3 period of employment13 or that work activities produce symptoms revelatory of an underlying condition14 does not raise an inference of causal relationship between a claimed condition and an employment incident.

Because appellant has not submitted competent medical opinion evidence containing a firmly diagnosed medical condition or one that soundly explains how the accepted employment incident caused or aggravated a firmly diagnosed medical condition, the Board finds that appellant has not established the essential element of a diagnosed medical condition.

Appellant may submit new evidence or argument with a written request for reconsideration to OWCP within one year of this merit decision, pursuant to 5 U.S.C. § 8128(a) and 20 C.F.R. §§ 10.605 through 10.607.

CONCLUSION

The Board finds that appellant did not meet her burden of proof to establish that she sustained right carpal tunnel syndrome in the performance of duty, as alleged.

ORDER

IT IS HEREBY ORDERED THAT the decision of the Office of Workers’ Compensation Programs dated February 28, 2012 is affirmed.

Issued: November 20, 2012
Washington, DC

Colleen Duffy Kiko, Judge
Employees’ Compensation Appeals Board

Patricia Howard Fitzgerald, Judge
Employees’ Compensation Appeals Board

Alec J. Koromilas, Alternate Judge
Employees’ Compensation Appeals Board

13
E.A., 58 ECAB 677 (2007); Albert C. Haygard, 11 ECAB 393 (1960).
14
D.E., 58 ECAB 448 (2007); Fabian Nelson, 12 ECAB 155 (1960).

4